The Supreme Court on Wednesday rejected, in a 2-1 judgment, an election appeal seeking Awami Muslim League (AML) chief Sheikh Rashid Ahmed’s disqualification for life.
The bench comprising Justice Sheikh Azmat Saeed, Justice Qazi Faez Isa and Justice Sajjad Ali Shah rejected the election appeal of Pakistan Muslim League-Nawaz (PML-N) member Malik Shakeel Awan.
The petitioner accused Rashid of misdeclaring his assets in the nomination forms that he had submitted to the Election Commission of Pakistan (ECP) for the 2013 general elections.
The bench had reserved the verdict on March 20 on Awan’s appeal who lost the 2013 elections in Rawalpindi’s NA-55 constituency to Rashid.
“This Civil Appeal, i.e., CA No. 467/2015 (Malik Shakeel Awan vs. Sheikh Rashid Ahmed, etc.) is hereby dismissed by a majority of two to one, with Qazi Faez Isa J’s holding that first the matter be referred to a bench comprising the full court to decide the questions of law identified and enumerated by him,” read the court order.
However, none of the members of the bench disqualified Rashid.
Justice Isa, in his dissenting note, said that if “the principle or rule of strict liability is applicable, [then] Sheikh Rashid will have to be disqualified”.
While raising seven questions, he referred the matter to the chief justice of Pakistan for forming a full court for its adjudication, saying this election petition should be fixed for a decision later.
Justice Sheikh, while writing the majority opinion, observed that under the circumstances, “the explanation offered appears to be reasonable and logical”.
“Consequently, the conclusion drawn by the election tribunal that there was no concealment of agriculture land in the nomination papers filed by Sheikh Rashid is based upon a correct and judicious appreciation of evidence available on the record and in accordance with the law as laid down by this court. Hence, no exception can be taken to such finding,” said Justice Sheikh.
“It cannot be held that the respondent no. 1 (Sheikh Rashid) made any misstatement regarding the value of the said property, the ownership of which has been mentioned in the nomination papers along with the consideration paid therefor,” he added.
According to the majority opinion, a simple mathematical exercise reveals that as per the details provided by Sheikh Rashid in his nomination papers at page 79, he owns 1,081 kanals and 17 marlas of land and in the grand total it has been incorrectly mentioned as 983 kanals and 17 marlas.
“This error appears to have crept into the printed nomination papers. The miscalculation between the area of agriculture land owned by the respondent no. 1 scribed in the printed form and as mentioned item-wise in the details on page 79 of the nomination papers is self-evident. As per the details, the respondent no. 1 has perhaps declared a little more land than as alleged by the appellant (Shakeel Awan).”
Regarding the property i.e. House No 40, Sector A, Golf City, Expressway, which the respondent claimed to have acquired from Bahria Town, the bench ruled, “It cannot be held that the respondent no. 1 made any misstatement regarding the value of the said property, the ownership of which has been mentioned in the Nomination Papers along with the consideration paid therefor.”
Meanwhile, Justice Isa, in his note, observed that “the counsel for Shakeel Awan has not been able to satisfy us with regard to the alleged discrepancies in the payment of income tax and bank profit earned by Sheikh Rashid”.
“Therefore, it would not be appropriate for us to declare that the respondent no. 1 (Sheikh Rashid) had not provided incorrect information regarding his income tax on the basis of mere inference nor will it be appropriate to enable the appellant to make out his case by recording additional evidence before this court,” he wrote.
Justice Isa added that it is, however, entirely possible that this non-disclosure was an oversight by the respondent no. 1, particularly when there appears to be no benefit or advantage accruing to him on account of such nondisclosure.
Regarding the property, i.e. House No. 40, Sector A, Golf City, Justice Isa also questioned why would a limited liability company act in this unconventional manner and contravene the laws governing it.
“Whether the respondent no. 1 did not have the requisite ‘white money’, that is the money duly declared to the income tax authorities, or he was given the said house at almost one-fifth of its price as a political favour, and the part-exchange of agriculture land was just a sham explanation to conceal the truth, would require us to delve in the realm of conjecture, which we consciously do not want to,” he wrote.
“We are, however, clear that there is sufficient evidence on record to establish that the respondent misdeclared the value of the said house in his statement of assets, the correct value of which was not less than forty eight million rupees,” he added.
Justice Isa said that having determined that the respondent did not disclose all his agriculture land and misdeclared the value of the said house in his nomination form, the consequences of such nondisclosure and misdeclaration need consideration.
“If the principle or rule of strict liability is applicable the respondent will have to be disqualified. But, if the strict liability rule is not applicable, then the consequences of the said nondisclosure and misdeclaration need to be explored further.”
However, Justice Isa said that in cases where the nondisclosure or misdeclaration gives an illegal advantage to a candidate, then such nondisclosure or misdeclaration would terminate his candidature, and if he has been elected to his disqualification and consequent removal.